Works by J. Willard Hurst

The Scholarship of James
Willard Hurst

James Willard Hurst published over three dozen books and articles plus
numerous book reviews. Certainly, his most widely-read book is Law
and the Conditions of Freedom in the Nineteenth-Century United States (1956). This slim volume consists of three essays based upon lectures
Hurst gave at Northwestern University School of Law in 1955. In the
first essay, Hurst develops his famous "release of energy"
thesis. Here he argues that an organizing principle of the nineteenth-century
legal and social order in the United States was that the "legal
order should protect and promote the release of individual creative
energy. . . " (p. 6) A pro-development consensus undergirded nineteenth-century
lawmaking. This is not to say, however, that Hurst believed that American
law set and achieved instrumental goals. In the third essay, Hurst elaborates
on an argument he develops elsewhere that social change was not the
result of deliberate, purposeful action but was allowed to take place
through the "drift" and "default" of public policy.

Although it has not attained the canonical status of his earlier short
book of lectures, Willard Hurst's 1964 masterwork Law and Economic
Growth: The Legal History of the Lumber Industry in Wisconsin 1836-1915 is the centerpiece of his writing. Hurst's first three books -- The
Growth of American Law: The Law Makers (1950) and Law and Social
Process in United States History (1960) as well as Law and the
Conditions of Freedom -- were preliminary studies in which Hurst
worked out the theoretical approach that he applied to the lumber industry
study. He fixed on the topic shortly after arriving at Wisconsin
in 1937 when he heard a talk by Aldo Leopold. Inspired by Leopold's
focus on the inter-relationship between the facts of botany and the
facts of wild life and human beings and what they did with the earth,
Hurst's work transcended the recognized boundaries of legal scholarship
by drawing upon the inter-relation between different fields of inquiry,
to discover insights and truths about the law. As a consequence, despite
its seemingly parochial subject matter, Law and Economic Growth is a source of general knowledge about American history and culture
and an inspiration to scholars of many different disciplines. In subsequent
books, Hurst refined and elaborated the insights that he developed in
the course of his work on the timber industry.

Hurst
worked on a manual typewriter

Taken as a whole, Hurst's scholarship displays a number of distinctive
characteristics: multifaceted empiricism, pragmatism, and a strong moral
stance. For sources, he mined published documents of legal agencies
-- court reporters, legislative journals, session laws, and reports
of the executive branch -- looking for facts, not for theory and doctrine.
Following Karl Llewellyn, he focused on the functioning of rather than
the formal structure of lawmaking agencies. Hurst generalized from his
empirical studies and made highly abstract conclusions about ideas and
culture, but he always remained rooted in the real-world experiences
of everyday men and women. He also sought to draw from this everyday
experience, truths about law in action and about American culture that
would enable people to increase their ability to control their own affairs.

Hurst's work has also been extraordinarily generative. The Growth
of American Law: The Law Makers became a starting point for later
work addressing the role of lawyers in society (Munger 113). Dealing
with Statutes (1982) was a synthesis of his ideas about statutory
interpretation and "was one of the works directly contributing
to the renaissance of statutory interpretation writing in the 1980s"
(Eskridge 1181). In the notes to Law and Economic Growth, Hurst
identified an enormous range of topics that remained open for further
study. And, the scholarly tradition that Willard Hurst began and promoted,
both in legal history and in law-and-society studies generally, remains
influential to this day.

I. BOOKS

Dealing with Statutes. New York: Columbia University Press,
1982.

Developments in the Law of Industrial Accident. Madison, Wisc.:
College Typing Co., 1939. (Hurst was editor.)

A Digest of Regional Sources for the Study of the Economic and
Political History of the Law. Vol. 1. The Wisconsin Reports,
1 Penney (1839) through 253 Wisc. (1940). 1941. (Typewritten manuscript
prepared with Rubben W. Fleming et. al.)

The Functions of Courts in the United States, 1950-1980. Madison:
Disputes Processing Research Program, University of Wisconsin, 1980.

The Growth of American Law: The Law Makers. Boston: Little
Brown, 1950.

A History of the Principal Agencies of Law in the United States.
Madison: University of Wisconsin Law School, 1948.

Justice Holmes on Legal History. New York: Macmillan, 1964.

Law and Economic Growth. The Legal History of the Lumber Industry
in Wisconsin, 1836-1915. Madison: University of Wisconsin Press,
1984 (orig. pub. Cambridge, Mass.: Belknap Press of Harvard University
Press, 1964).

Law and Markets in United States History: Different Modes of Bargaining
Among Interests. Madison: University of Wisconsin Press, 1982.

Law and Social Order in the United States. Ithaca: Cornell
University Press, 1977.

Law and Social Process in United States History, Five lectures
delivered at the University of Michigan, Nov. 9, 10, 11, 12, and 13,
1959. Ann Arbor: University of Michigan Law School, 1960.

Law and the Conditions of Freedom in the Nineteenth-Century United
States. Madison: University of Wisconsin Press, 1956.

Law in Society: A Course Designed for Undergraduates and Beginning
Law Students; Cases and Other Materials. Madison, Wis.: College
Typing Co., 1941. (Ed. with Lloyd Kirkham Garrison)

The Law of Treason in the United States. Collected Essays.
Collected Essays. Westport, Conn.: Greenwood Pub. Corp., 1971.

A Legal History of Money in the United States, 1774-1970. Lincoln:
University of Nebraska Press, 1973.

The Legitimacy of the Business Corporation in the Law of the United
States, 1780-1970. Charlottesville: University Press of Virginia,
1970.

Statutes in Court. Madison Wis.: American Printing and Pub.,
1970. (Materials for a course on legislation)

"Themes in United States Legal History." In Felix Frankfurter:
A Tribute, ed. Wallace Mendelson, 199-220. New York: Reynal, 1964.

"A Tribute." In Fiftieth Anniversary Convocation of Justice
Brandeis's Appointment to the Supreme Court of the United States,
ed. Student Bar Association, University of Louisville School of Law,
2. Louisville, Ky: University of Louisville School of Law, 1966.